Professor Kees Groenendijk,
Radboud University, Emeritus and Professor Elspeth Guild, University of
Liverpool
Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung
Ukraine und EU -- 2022 -- 0219” / CC BY-SA 4.0
On 3 March 2022 the EU legislator, for the first time, opened a temporary protection scheme under Directive 2001/55 for those fleeing the Russian invasion of Ukraine. While the Directive limits the duration of any scheme to three years maximum, the EU legislator has already extended the scheme to five years and is currently reflecting on where to go next. The validity of the extra extension has already been considered by Peers, Ineli-Ciger and others and for the moment the Court of Justice has yet to be asked.
In the meantime, the war in Ukraine
continues. Some
have assessed that at the current rate of progress, it
would take Russia centuries and tens of millions of deaths to succeed in
occupying Ukraine. It seems that Ukrainian
attacks in Russia are causing havoc and the Ukrainian military
is holding up and diversifying its strategy. There is little or no news about
any peace negotiations. Last year Eurostat advised
that 4.31 million non-EU
citizens who fled Ukraine as a consequence of the Russian war of aggression
against Ukraine had a temporary
protection status in the EU. The number is unlikely to
have diminished since then. Many of these people arrived in the EU soon after
the opening of the scheme and will soon have been resident in the EU for five
years.
In this blog, we examine the pressing need for a common EU approach to providing a durable status to those who are in the EU and address some of the issues which are being expressed by some Member States and EU institutions. In 2023, we examined the nature of the temporary protection scheme and the challenges for the Member States. In our contribution to Govaere and Graben The Impact of War (in Ukraine) on the EU Hart, 2025) we examined the options available to the EU legislator and Member States regarding the long term status of beneficiaries of the Temporary Protection scheme. At that time we strongly recommended that there would need to be an EU wide scheme to bring these persons into a stable and permanent status. We proposed a number of options, from the most liberal – a modified free movement of persons regime with Ukraine in the context of the EU-Ukraine enlargement procedures to the most limited a special scheme limited to those who are already reaching the end of the scheme’s life span.
What we did not expect at the time of writing was that the EU legislator would simply continue to extend the scheme notwithstanding the express limit in the directive to three years. But this has been the policy option for the moment.
In September 2025, a Council Recommendation proposed that there be a transition into national or EU legal statuses for those currently benefitting from temporary protection. Few, however, have managed to do so. problem is the numbers. In 2024, according to Eurostat the Member States managed to issue 3.5 million first residence permits to non-EU citizens. Adding 4.31 million applications to change status or be issued a new permit in a different status would undoubtedly cause consternation to the officials charged with the task. Further, as we argued before, unless there is a common EU status for temporary protection beneficiaries any differences in treatment could result in them moving among the Member States in search of greater stability.
In one of the most important destination states for temporary protection beneficiaries the following information is available: according to the Central Alien’s Registration a total of 1,346,200 displaced persons from Ukraine were living in Germany on 30 April 2026, more than 96% having Ukrainian nationality. 88% received a residence permit for temporary protection under Directive 2001/5 and §24 of the Aufenthaltsgesetz, 7% applied for that residence permit but their applications are still pending, and 2% applied for international protection. The remaining 3% did not apply for either temporary or international protection. According to the same source, 467,100 displaced persons from Ukraine who came to Germany between February 2022 and 31 December 2025, were no longer living in Germany at that date (or have otherwise disappeared from the register). Thus, a quarter of the displaced persons who came to Germany after the Russian war of aggression no longer live in that member state. Apparently, few displaced persons received a national or an EU-residence permit instead or in addition to their temporary protection status.
In light of these pressing issues and the difficulty which the EU legislator is having with the question, we are now revisiting the subject with a view to providing a clear action plan to provide these people with security while assuaging concerns of some Member States.
When the EU legislator first addressed the issue of security of residence for third country nationals resident in the EU it adopted a directive in 2003. Having commissioned research on the normal period of residence Member States require for third country nationals to spend in a state before enjoying security of residence, the EU legislator alighted on the period of five years as the most appropriate to ensure genuine integration and fair treatment to resident third country nationals. The same time period should be applicable also to temporary protection beneficiaries on the basis of the same arguments.
In light of the difficulties of the EU legislator to adapt any existing measure to resolve the pressing need to provide certainty and security of residence of Ukraine temporary protection beneficiaries we now propose the following course of action.
The
Proposal and Adoption of a new EU legal instrument
The Commission should propose a new legal instrument based on Article 79(2)(a) and (b) TFEU consisting of the following five essential elements:
1. Beneficiaries of temporary
protection from Ukraine who have resided legally in an EU Member State for five
years retain the rights they acquired under Directive 2001/55/EC or under
national law in that Member State. The transition should be fully automatic.
2. Member States may not
introduce new restrictions on the right of residence, the access to
(self-)employment, and access to general and vocational education applicable to
the persons referred to in point 1.
3. Member States may withdraw a
right of residence acquired under point 1 only on the exclusion grounds listed
in Article 28 of Directive 2001/55/EC, the grounds relating to public policy,
public security or public health listed in Article 27 of Directive 2004/38/EC,
or in case the person has not been present in the territory of the European
Union for a period of 12 consecutive months (cfr. Article 9(1)(c) of Directive
2003/109/EC).
After five years of lawful
residence (and employment during part of those five years) termination of
residence on economic grounds is no longer permitted. [cfr. for third-country
nationals with an EU long-term residence permit, according to Article 12(2) of
Directive 2003/109/EC, and for Union citizens, according to Article 16(4) of
Directive 2004/38/EC.]
4. In case of the loss of the
right of residence pursuant to point 3, the rights under Directive 2001/55/EC
are reacquired. In case the temporary protection for beneficiaries from Ukraine
has come to an end, the national law of
the Member State shall apply to the third country nationals mentioned in the
first sentence.
5. Member States have the right
to adopt or maintain more favorable provisions.
Three Main Aims
Establishing an almost uniform transitional residence status at EU level, as long as no other more stable and durable residence status is acquired under EU or national law, would serve three aims: (1) granting secure residence rights would on the one hand promote the integration of those wanting to remain in their Member State of residence and (2) on the other hand support the voluntary return of those considering return to Ukraine by explicitly allowing for absence from the EU up to twelve months. (3) The third aim is the reduction of administrative burden through the quasi-automatic acquisition of durable residence rights after five years of temporary protection.
The majority of temporary protection beneficiaries from Ukraine entered their host Member States in 2022. By 2027, these individuals will have resided legally in that Member State for five years on the basis of Directive 2001/55/EC. From mid-2027, the abovementioned transitional EU residence status should will be acquired gradually and automatically on the basis of EU law without an application or a decision by an administrative authority. The likelihood of large numbers of asylum procedures and the associated burden on asylum authorities and, potentially, the courts will be reduced, whilst the continued protection needs remain guaranteed at the level provided in Directive 2001/55/EC. The second sentence of Article 8(1) of that directive, concerning documents to be issued, will continue to apply, pursuant to point 1.
Further Explanation
The proposed regulation utilizes elements of the residence status of third-country nationals with an EU long-term residence permit under Directive 2003/109/EC and the status of EU citizens under Directive 2004/38/EC. The proposed scheme also serves Ukraine's interests regarding the voluntary return of Ukrainian citizens and represents a preferential treatment of Ukrainian citizens under EU migration law, compatible with Ukraine’s status of candidate member state, without requiring Ukraine's membership in the European Union or establishing EU citizenship for Ukrainian citizens. The scheme does not provide for more intra-EU mobility with this durable residence right than under the Temporary Protection Directive before acquisition of the EU-long term residents’ permit or Union citizenship.
The scheme clarifies that, after five years of lawful residence in a Member State, deportation to Ukraine is only possible in exceptional individual cases and that the war refugees and their families are part of Europe. Individual review by immigration authorities only in cases of loss of the durable residence right. Reunification with family members from Ukraine or family members living in other Member States would be governed by Article 15 of Directive 2001/55/EC, the Family Reunification Directive 2003/86/EC, or, in case those the relevant provisions of those two instruments are not applicable, by national law. Pursuant to point 1 of the proposed new instrument, the right to apply for asylum, confirmed in Article 17 TPD will continue to apply to persons with the new EU status. This transitional scheme would also apply to third-country nationals without Ukraine’s citizenship who acquired temporary protection under Directive 2001/55/EC.
At present, war refugees granted temporary protection under Directive 2001/55/EC are excluded from the personal scope of the EU Long-Term Residence Directive 2003/109/EC, the Blue Card Directive 2021/1883/EU, the Single Permit Directive 2024/1233/EU, and the Students and Researchers Directive 2016/801/EU. The proposed new EU-status is not mentioned in Articles 2 or 3 of these four directives. The exclusion clause in those four directives no longer obstructs access to employment and social inclusion in Member States on the basis of those directives. The previous residence on the basis of Directive 2001/55 counts as lawful residence for the application of those four directives.
One final remark
As long as the Russian war of aggression in Ukraine continues, Directive 2001/55/EC should be extended for (a) new war refugees from Ukraine, and (b) war refugees from Ukraine who have resided in a Member State for less than five years and are, hence not yet covered by the transitional scheme.
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